209Guhap1978 Nullification of resolution of the local council

Dog Dog

Daejeon Dong-gu

Attorney Park Jong-young, Counsel for the plaintiff-appellant

Daejeon Metropolitan City Council

Daejeon Seosan-dong 1420

Attorney Lee Jae-ho, Counsel for the defendant-appellant

September 7, 2009

October 14, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The defendant confirmed that the resolution of the non-Confidence proposal against the plaintiff on May 20, 2009 by the defendant is null and void.

1. Details of the disposition;

A. The Plaintiff was elected as a member of the Defendant Council on July 8, 2008 as the chairman of the Defendant Council on July 8, 2008. However, the Plaintiff was a total of 19 members including the Plaintiff.

B. On May 13, 2009, the nine other members of the Defendant Council Council Kim Jong-hoon et al. submitted to the Defendant a non-Confidence resolution proposal against the Plaintiff (hereinafter referred to as “non-Confidence resolution proposal of this case”). The contents are as follows.

○ The Plaintiff was elected as the chairman of the Defendant Council, who was at the end of the latter half of the Defendant Council, and was at the suspicion of unjust voting;

In this regard, the ballot inspectors at the time were sentenced to a fine of KRW 5 million in the first instance court.

○ For this reason, the Congress’s strike continues for about 10 months, and a question is raised against the Plaintiff’s leadership:

The plaintiff voluntarily submitted a letter of resignation, but the bill of resignation has been rejected, and the prior letter of intention has also been rejected.

The Council's normalization has become more urgent due to the suspicions such as the council's normalization.

The plaintiff is under the influence of resignation from the press and civil organizations representing civil opinions.

○ Nevertheless, the Plaintiff’s statement of intent to continue to serve as the Speaker without the responsibility for the situation.

The Congress's normalization is carried out, such as ordering, and in relation to Article 38 of the Local Autonomy Act, the Daejeon Metropolitan City.

The Ordinance on the Code of Ethics and the Code of Ethical Practice of Council Members (hereinafter referred to as the "Ordinance on Ethical Practice").

The provisions of the "Act" were violated. The Act violated the provisions of the "Act."

C. On May 20, 2009, the Defendant Council issued a non-Confidence resolution to the 7th extraordinary session of the 182th regular session on May 2009. As a result, the non-Confidence resolution against the Plaintiff was passed with the consent of the 10 majority of the members present at the 18th regular session, and the 8 opposing members, with the consent of the majority of the members present at the 18th regular session (hereinafter “the non-Confidence resolution of the above Defendant Council”).

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. The assertion and judgment

A. The assertion

1) The plaintiff's assertion

A) Violation of law

Article 36 of the Local Autonomy Act provides that the Plaintiff violated the ethical ordinance enacted by delegation under Article 38 of the Local Autonomy Act, and the Defendant Council violated Article 36 of the Local Autonomy Act due to the cause of the non-Confidence resolution against the Plaintiff in the instant lawsuit. However, Article 36 of the Local Autonomy Act provides that the Plaintiff, who is the chairman of the local council, may not be considered as the grounds for non-Confidence against the Plaintiff, and Article 38 of the Local Autonomy Act provides that the matters to be observed by the local council may be prescribed by the municipal ordinance. Article 38 of the Local Autonomy Act does not provide for sanctions against the violation of the municipal ordinance. In addition, Article 55(1) of the Local Autonomy Act provides that the chairman of the local council may pass a non-Confidence resolution in cases of violation of the statutes, but the above municipal ordinance enacted by the local council, which does not constitute a non-Confidence resolution for the Plaintiff’s violation of the Local Autonomy Act, and Article 55(1) of the Local Autonomy Act does not constitute a violation of the above municipal ordinance.

B) misunderstanding of facts

One of the reasons for non-Confidence resolution stated in the No-Confidence Resolution of this case is “Defendant Council”

In the latter half of the year, there was suspicions of illegal voting at the time of election as the chairman, and in this regard, the chairman was sentenced to a fine by the ballot inspector. In addition, the Plaintiff was subject to a non-prosecution disposition by the investigative agency as having never been involved in the act of the above ballot inspector. In addition, since the act of the above ballot inspector was not affected by the outcome of the ticket, it is not related to the Plaintiff’s election as the chairman. Nevertheless, the Defendant Council made a resolution of the non-Confidence of this case with the above reasons, which is unlawful.

2) Defendant’s assertion

A) The non-Confidence resolution of this case is merely merely a proposal that was submitted by nine members of the defendant council, other than Kim Private Teaching Institutes, while proposing a non-Confidence resolution of the plaintiff, and cannot be viewed as a ground for the non-Confidence resolution of this case. Therefore, in this case, the ground for the non-Confidence resolution of the plaintiff is that the plaintiff violated Article 36 of the Local Autonomy Act, and the legal nature of the disposition of this case should also be determined according to the violation of the above provision.

B) Even if the instant disposition is unlawful, a judgment of assessment must be rendered on the ground that the revocation of the non-Confidence resolution of this case would result in a significantly inappropriate result for public welfare.

(b) Related statutes;

The same shall apply to the entries in the attached statutes.

(c) Facts of recognition;

1) On May 31, 2006, the Defendant Council was composed of 19 members elected through the 4th election of Dong-si local governments. The Defendant Council members consisted of 11 members of the so-called so-called “ alcoholic beverages” and 8 members of the so-called “non- alcoholic beverages” including the Plaintiff, causing conflicts from the beginning of the establishment of the Defendant Council.

2) On July 8, 2008, Defendant Congress held an election of the latter half-year chairman, and the Plaintiff is a member of the liquor council.

In the process, non-drawing members were elected as a candidate for support. However, in the process, the non-drawing Council members: (i) elected the Plaintiff as a member of the ballot counting, and (ii) decided on the ballot paper to monitor the support of the Council members; (iii) refused to do so by raising suspicion that it violates the principle of secret voting; and (iv) thereafter, (v) elected the chairman of the Defendant Council as the chairman of the Standing Committee of the Defendant Council.

3) Accordingly, the media in the Daejeon District continuously reported an article that criticizes the strike of the Defendant Council, and the Daejeon District non-governmental organizations also announced annually their names to urge the normal operation of the Defendant Council.

4) After receiving a written accusation from a non-governmental organization, the prosecution conducted an investigation into the suspicion of election by non-legal members on September 1, 2008. The prosecutor, who was a ballot inspector, charged the plaintiff with the charge of obstructing the public duties of the Speaker and members by fraudulent means, having different location where the stamp stamp stamp stamp stamp was affixed to the ballot paper so that only the plaintiff can be confirmed at the time of sealing stamp stamp stamp stamp stamp stamp stamp stamp stamp stamp stamp stamp stamp was affixed to the ballot paper. The defendant was found to be guilty of all the above charges, and on January 7, 2009, he was sentenced to a fine of five million won as an obstruction of the performance of official duties by the Daejeon District Court.

5) Accordingly, non-exclusive members and non-exclusive members of the Daejeon District Press and non-exclusive groups urged the plaintiff to be responsible for the above situation and resign from the office of the chairman of the defendant council. Accordingly, the plaintiff expressed his/her intention of resignation on March 24, 2009, and the plaintiff presented his/her intention of resignation on April 28, 2009. However, at the open extraordinary meeting held on April 28, 2009, the agenda was presented to the plaintiff's consent to the resignation of the chairman of the plaintiff. However, the two cases of the defendant council, which are the causes of the member of the liquor council, proposed that the above resignation should be put to the vote by a bearer vote, and as a result, the voting on the consent to the resignation was made by a bearer vote. As a result, 18 members other than the plaintiff among the 19 incumbent members, were present and rejected.

5) According to the Assembly Rules of the Daejeon Metropolitan City Council, if a non-exclusive licensee resigns, the agenda item of his/her consent should be immediately resolved without debate. However, if a debate was presented to suggest that both B/L belonging to alcoholic beverages should be a bearer vote, the plaintiff did not intend to resign from his/her position, and eventually, the rejection of the agenda item of his/her consent would be based on the prior mother with the plaintiff.

6) On May 1, 2009, when the agenda of the consent to resignation was rejected at the plenary session, the Plaintiff again expressed his/her intention to act as the Speaker, and non-exclusive members were contrary to the resolution of non-Confidence against the Plaintiff, and submitted it to the Defendant Council.

7) Meanwhile, after the non-Confidence resolution of this case against the plaintiff, the defendant Congress elected a member of the Kim Private Teaching Institute as the head of the next president on July 13, 2009.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 4, Eul evidence 3 to 5 (which has a number)

each entry, the whole purport of the pleading, including each number)

D. Determination

1) The plaintiff asserts that the non-Confidence resolution of this case is unlawful as to the grounds stated in the non-Confidence resolution of this case, and ultimately, it is unlawful. However, the contents of the non-Confidence resolution of this case are the proposals submitted by the council members of the defendant et al., other than Kim Institute and nine members of the defendant council while proposing the non-Confidence resolution of the plaintiff, and all the grounds stated in the above proposals are specific about the fact that the plaintiff violated the "non-Confidence of the maintenance of dignity" that should be observed as the council members under Article 36 of the Non-Confidence Act, and therefore, the non-Confidence ground for the plaintiff against the plaintiff is eventually a violation of the duty of the council members under Article 36 of the Local Autonomy Act, as argued by the defendant.

2) In relation to Article 36 of the Local Autonomy Act, the plaintiff argues that this provision is a provision on the obligations of a local council member, and therefore, it cannot be a ground for the non-Confidence resolution against the plaintiff who is the chairman of the local council. However, according to the Local Autonomy Act, if the chairman of the local council violates the laws and regulations, the local council may pass a resolution of non-Confidence against the chairman (Article 55(1)), but the chairman of the local council also has the status as a member of the local council, and the principal of the local council is not only the case where the chairman violates the duties as the chairman of the local council, but also the case where the chairman violates the laws and regulations. Thus, it is reasonable to view that such a violation of the laws and regulations also includes the case where he violates the duties as a member of the local council under the Local Autonomy Act.

3) Therefore, the issue of whether the non-Confidence resolution in this case is null and void shall be determined by the issue of whether there are serious and apparent defects in determining whether the council members of the defendant Council violated their duties as council members under Article 36 of the Local Autonomy Act. Article 36 of the Local Autonomy Act imposes on the council members the duty to faithfully perform their duties as council members or to maintain their dignity. However, what the council members performed their duties as council members and their dignity are not otherwise prescribed in the Local Autonomy Act. Therefore, in determining whether there is a serious and obvious defect in the non-Confidence resolution in this case, the above "performance and dignity as council members" can be included in various types of acts in light of its language. The defendant Council is a representative organization composed of local council members elected by residents, and the contents of the resolution of the defendant Council need to be respected.

However, the following circumstances confirmed by the above facts were revealed: ① during the process of the Plaintiff’s election as the chairman of the Defendant’s post-meeting, there was suspicion that, at the time of the Plaintiff’s election, Kim ○○, a member of the alcoholic beverage Council, who was a member of the Defendant’s meeting, engaged in monitoring the support of other alcoholic beverage members by marking a specific mark on the ticket; Kim ○ was prosecuted and sentenced by the Daejeon District Court as an offense of obstruction of the execution of deceptive scheme from the Daejeon District Court. Although the Plaintiff was sentenced to a non-prosecution disposition by the prosecution, the Plaintiff’s trust to the Defendant’s Council was crashed due to the above circumstances, resulting in the Plaintiff’s loss of the authority of the Defendant’s Council, and the Plaintiff appears to be responsible for political and Doing such circumstances; ② the Plaintiff and alcoholic beverage members were sharply opposed to the Plaintiff’s election during the voting process of the chairman’s election; ② the Plaintiff’s non-exclusive members were not present at the meeting of the Council and the Plaintiff’s election of the Plaintiff on July 28, 20008.

In light of the following circumstances: (a) the Plaintiff expressed his intention of resignation on March 24, 2009; (b) the Plaintiff made a bearer vote by proposing that the agenda of the consent to resignation should be treated as a bearer vote; (c) the Plaintiff’s motion to resign was rejected at the Defendant Council; (d) the Plaintiff expressed his intention to act as the chairman of the Defendant Council again after three days thereafter; and (e) the Plaintiff expressed his intention to act as the chairman of the Defendant Council; and (e) the Plaintiff’s opinion to criticize the Plaintiff and the Defendant Council’s opinion to the local press and civic groups were unfolded; and (e) such series of circumstances were long-term lending of the operation of the Defendant Council, the Defendant Council did not deem that the Plaintiff violated its duty to act as a local council member, and thus, there was a serious defect or defect in the resolution of non-Confidence in the instant case against the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges of the presiding judge;

Judges Yoon Jae-young

Judges Cho Jong-soo

Related Acts and subordinate statutes

【Local Autonomy Act

Article 36 (Obligations of Council Members)

(1) Local council members shall give first priority to public interest and shall perform their duties conscientiously and faithfully.

(2) Local council members shall have the duty to remain honest and shall maintain their integrity and dignity as council members.

Article 38 (Duties, etc. of Local Councils)

(1) The local council shall enact by its Municipal Ordinance the code of ethics and the code of practical ethics that the council members are required to observe.

(2) The local council shall endeavor to have its members secure professionalism necessary for the parliamentary activities.

Article 55 (Non-Confidence Resolution for Chairperson)

(1) If the chairperson or Vice-chairperson of a local council violates Acts and subordinate statutes or fails to perform his/her duties without justifiable grounds, the local council may pass a resolution of non-

(2) A non-Confidence resolution under paragraph (1) shall be adopted by not less than 1/4 of all incumbent members and by the concurrent vote of a majority of all incumbent members

(3) When a non-Confidence resolution as referred to in paragraph (2) has been made, the Speaker or Vice-Speaker shall be dismissed from office.

/Ordinance on the Code of Ethics and Ethical Practice of the Daejeon Metropolitan City Council Members

Article 2 (Code of Ethics) Members of the Daejeon Metropolitan City Council (hereinafter referred to as "members") shall be prescribed in attached Table 1 in order to ensure that the representatives of residents can faithfully perform their duties in accordance with their conscience and shall be able to obtain trust from residents of the Daejeon Metropolitan City Council, as representatives of residents.

Article 3 (Rules on Ethical Practice) Members shall determine as shown in attached Table 2 the code of Ethical Practice to observe the Code of Ethics under Article 2.

[Attachment 1]

The Code of Ethics of Members of the Daejeon Metropolitan City Council (related to Article 2)

The member of the Daejeon Metropolitan City Council, as a representative of residents, shall faithfully perform his/her duties in accordance with his/her conscience and shall be trusted by residents. Furthermore, by enhancing the honor and authority of the Council, he/she shall perform his/her duties for the development of local autonomy, the promotion of the welfare and correction of residents, and we shall determine the code of ethics that the member shall observe as follows:

5. The representative of the residents shall be responsible for all public works.

[Attachment 2]

Regulations on Ethical Practice of Members of Daejeon Metropolitan City (Related to Article 3)

The rules on ethical practice to faithfully observe the code of ethics under Article 2 of the Ordinance on the Code of Ethics and the Code of Ethical Practice of the Daejeon Metropolitan City Council Members shall be prescribed as follows:

1. He shall not perform any act detrimental to the dignity of any assemblyman in the performance of his duties;

【Meeting Rules of the Daejeon Metropolitan City

Article 12 (Resignation of Speaker and Vice-Speaker)

(1) The Speaker and Vice-Speaker may resign from their offices with the consent of the Council.

(2) Whether or not to consent to the resignation shall be decided by vote without debate.